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Mortgage foreclosure under the Constitution: Property, housing and the National Credit Act

Promoter: Prof AJ van der Walt

Co-Promoter: Prof GF Lubbe

The enforcement of mortgage bonds is a legitimate economic and legal goal, but the property and housing clauses might be compromised when a home is sold in execution. These constitutional provisions require that arbitrary and disproportionate results be avoided when debtors lose their homes through forced sales. The dissertation shows that the traditional principles of South African mortgage law might not always satisfy the constitutional requirements. However, based on the subsidiarity principles, it is argued that development of the common law is unjustified, since the proper interpretation and application of the National Credit Act will ensure constitutionally acceptable results.

Dr Wian Erlank (Public Law) LLD

Property in virtual worlds

Promotor: Prof AJ van der Walt

The candidate investigates how property is protected in virtual worlds like Second Life and World of Warcraft and whether it should be protected by real-world law. The dissertation shows that a certain notion of property does exist in virtual worlds and that there are significant similarities between property in virtual worlds and in the real world. Although the function of property in both worlds is comparable, the similarities are undermined by the almost complete lack of real rights in virtual worlds. The candidate concludes that there are sufficient grounds (social, economic and normative) to protect virtual property with real-world remedies in certain cases.

Dr Carolina Augusta Koch (Public Law) LLD

The right to a view: Common law, legislation and Constitution

Promoter: Prof AJ van der Walt

South African law does not recognise an inherent right to the existing, unobstructed view from a property. Property owners nevertheless often attempt to protect their existing views and courts sometimes grant orders that seem to grant such protection. The candidate establishes that the cases that seem to protect an existing view in fact do not reverse the general principle and that they at most provide procedural rulings that can block building on neighbouring land temporarily. According to constitutional analysis in terms of the methodology developed by the Constitutional Court this position is justified by section 25(1) of the Constitution.

Dr Bradley Virgill Slade (Public Law) LLD

The justification of expropriation for economic development

Promoter: Prof AJ van der Walt

The dissertation analyses the ‘public purpose or public interest’ requirement for a valid expropriation in the 1996 Constitution with reference to expropriation for purposes of economic development, particularly in instances where the property is transferred to third parties who undertake the development. The analysis also covers ancillary issues, such as the availability of less invasive means to expropriation and the post-expropriation effect of the public purpose requirement. Based on conclusions drawn from comparative case law the candidate suggests that South Africa either requires more detailed expropriation legislation or the courts need to scrutinise the purposes for which property is expropriated more strictly.

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About SARCPL

The South African Research Chair in Property Law was awarded to Professor AJ van der Walt in July 2007 as part of the South African Research Chair Initiative, which is funded by the Department of Science and Technology and administered by the National Research Foundation. The Research Chair is hosted by Stellenbosch University and is located in the Law Faculty.